Citation Nr: 0304161
Decision Date: 03/10/03 Archive Date: 03/18/03
DOCKET NO. 97-00 289A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for chronic lung disease,
to include chronic obstructive pulmonary disease, bronchitis,
and asbestosis.
REPRESENTATION
Appellant represented by: Marine Corps League
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The veteran had active service from April 1944 to April 1946,
and from September 1949 to September 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an RO rating decision of August 1996,
which, in pertinent part, denied service connection for
chronic obstructive pulmonary disease and bronchitis. That
part of the appeal was remanded by the Board in April 1998
for further development. In February 2002, the RO included
asbestosis in the appeal as part of the overall claim for a
respiratory condition.
FINDINGS OF FACT
1. The veteran currently has asbestosis related to in-
service asbestos exposure.
2. A current calcified lung granuloma began in service.
3. Other chronic lung diseases, including bronchitis and
chronic obstructive pulmonary disease, began many years after
service and were not due to any incident of service,
including exposure to asbestos.
CONCLUSIONS OF LAW
1. Asbestosis was incurred in active service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303
(2002).
2. A calcified lung granuloma was incurred in active
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2002);
38 C.F.R. § 3.303 (2002).
3. Other chronic lung disorders, including chronic
obstructive pulmonary disease and bronchitis, were not
incurred in or aggravated by active service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran had active service in the Marine Corps from April
1944 to April 1946, and from September 1949 to September
1970, at which point he retired based on over 24 years of
active duty. He served in the Pacific theater during World
War II; in Korea during the Korean Conflict; and in Vietnam
during the Vietnam era, where his awards included the Combat
Action Ribbon and the Air Medal. Service records indicate
his occupational specialty was either welder or aircraft
structural mechanic throughout his active duty.
Service medical records show the veteran was treated for
pneumonia in June 1944. In February 1965, he complained of
chest pain. Physical examination was negative. A chest X-
ray showed considerable scarring of old duration, with no
infiltrates or abnormal densities. The impression was
essentially normal chest. A chest X-ray in September 1967
was noted to be essentially negative. On the retirement
examination in April 1970, a chest X-ray was reported to be
within normal limits. Clinical evaluation of the chest and
lungs noted a defect of slight pectus excavatum. The veteran
was released from active duty in September 1970.
A January 1975 military retiree examination noted the lungs
and chest were normal, and on an accompanying medical history
form the veteran reported no lung problems.
In April 1992, the veteran was evaluated by J. A. Meadows,
M.D. The veteran said he had had considerable asbestos
exposure throughout his working life, starting with his
employment as an apprentice pipefitter for three years at the
Naval Air Station. The veteran had smoked from age 13 until
15 years ago. He had a history of an almost daily cough.
Currently, he was a self-employed welder. Chest X-ray showed
some linear atelectasis or fibrosis at the left base but was
otherwise unremarkable. There was no evidence of
interstitial lung disease or pleural disease of asbestos.
The impression was chronic bronchitis, and past history of
heavy asbestos exposure.
In April 1993, he was seen for follow-up. The veteran was
still working as a welder. Pulmonary function tests were not
significantly changed from the previous year, and showed
moderately severe small airways obstructive disease. A chest
X-ray showed some linear scarring at the left base, without
pleural thickening or increased interstitial markings or
other findings to suggest asbestosis. The assessment was
chronic obstructive pulmonary disease with chronic bronchitis
and past history of heavy asbestos exposure with question of
asbestosis component.
A report of a private chest X-ray obtained in December 1993
showed probable chronic obstructive pulmonary disease. There
was scarring noted at the left base with minimal old
granulomatous changes. A chest X-ray in February 1994
disclosed that the lungs appeared mildly hyperexpanded with
some chronic changes in the bases. There were no acute
infiltrates seen. The impression was chronic basilar
changes.
In April 1995, the veteran was evaluated by S. D. Desai,
M.D., with complaints of difficulty breathing especially with
exertion. History included smoking 2 packs of cigarettes per
day for 50 years, and quitting in 1980. History also
included exposure to asbestos and several chemicals in work
as a welder and metalsmith. A chest X-ray disclosed mild
chronic obstructive pulmonary disease but no signs of
asbestos related lung disease. Pulmonary function tests
showed an obstructive defect with air trapping, and the
doctor felt a component of restrictive defect probably
coexisted.
In April 1996, the veteran was seen at the VA for his
pulmonary condition. He said he had been exposed to asbestos
and Agent Orange. On an Agent Orange protocol examination
conducted in May 1996, the veteran said he had developed
shortness of breath at the age of 50. He said he had been
exposed to asbestos and welding gases. He said he had smoked
from age 13 to age 55. On examination, respiratory movements
were depressed. Percussion was normal. Inspiratory and
expiratory breath sounds were distant. Chest X-rays revealed
chronic obstructive pulmonary disease with no acute
infiltration or pleural fluid.
In July 1998, a VA respiratory examination was conducted.
The veteran said he had had significant exposure to asbestos
while on active duty. He had recently begun smoking again.
On examination, he had good air movement, clear auscultation,
with no appreciable wheezing or rhonchi, and no
hyperresonance to percussion. Chest X-rays disclosed a small
densely calcified granuloma, but nothing acute, with no
infiltrates or effusions. According to an addendum dated in
September 1998, a chest X-ray in August 1998 had shown no
evidence of asbestos-related disease. Pulmonary function
tests in July 1998 revealed mild obstructive ventilatory
defect. The diffusing capacity was preserved. The findings
were thought to be consistent with either asthmatic or
bronchitic response. There was no definite evidence of
pulmonary asbestosis. There was significant evidence of
current heavy smoking. The impression was chronic
obstructive pulmonary disease in a smoker, with no overt
evidence of asbestos-related disease.
In August 1999, the veteran underwent an asbestos evaluation
by R. Altmeyer, M.D. The veteran said he had worked as a
pipe fitter and welder. Aside from his military experiences,
he had been a plumber from 1946 to 1949, and from 1970 to
1993, a pipe fitter. He said he had had significant exposure
to asbestos over the years as a pipefitter/welder. He said
he had torn asbestos insulation off of pipes, and that he had
worked in areas where insulator, pipe fitters, and boiler
makers were working. His major exposure was from 1943 until
the 1970s. He said he worked directly with asbestos
insulation, cloth, gloves, gaskets, packing, and fire brick.
Currently, he had resumed smoking again, after having quit
for 20 years. He reported his current symptoms as shortness
of breath with slight exertion, and a productive cough,
without wheezing. On examination, breath sounds were
moderately decreased, he had prolonged forced expiratory
time. There were wheezes on exhalation, and crackles at the
bases. Pulmonary function tests revealed moderate airflow
obstruction. Diffusing capacity was moderately reduced.
There was mild restrictive impairment with a TLC of 75
percent of predicted. A chest X-ray was abnormal. The
impression was that based on history, examination, and review
of chest X-ray and pulmonary function tests, the veteran had
pulmonary asbestosis on the basis of irregular opacities at
the lung bases, persistent crackles at the lung bases, and
significant exposure to asbestos with an appropriate latency
period. Additionally, he had restrictive ventilatory
impairment with reduced diffusing capacity. He also had
airways obstruction due to his current and prior cigarette
smoking. The doctor's opinion was that the asbestosis arose
from the inhalation of asbestos fibers in the work place.
The veteran was advised to stop smoking, as the combination
of cigarette smoking and asbestos exposure increased the
change of lung cancer 80 to 100-fold. There was also a
calcified granuloma in the right lower lung zone from old
inflammatory disease.
A VA examination was conducted in November 2001. It was
noted that the claims file was reviewed. The veteran's
occupational history was primarily as a welder and pipefitter
from 1943 to 1993. He reported the onset of dyspnea in 1994.
On examination, the lungs were clear to palpation,
percussion, and auscultation. Pulmonary function tests were
noted to reveal mild obstruction, noted by a decrease in FVC.
The spirometry report resulted in a computerized
interpretation of moderate restrictive ventilatory defect,
indicated by a finding of moderately reduced forced vital
capacity (FVC). The examiner noted that the pulmonary
function tests results were clear and DLCO (diffusing
capacity) was not indicated. Chest X-rays disclosed chronic
obstructive pulmonary disease, and an apparent granuloma in
the right mid lung field, unchanged from 1996. Line density
present in the region of the left costophrenic angle
represented linear fibrotic changes. It was noted that the
chest X-ray was not commensurate with asbestosis. The
diagnosis was chronic obstructive pulmonary disease with
longstanding cigarette smoking.
II. Analysis
The file shows that by RO correspondence, the rating
decision, the statement of the case, and the supplemental
statements of the case, the veteran has been informed of the
evidence necessary to substantiate his claim, and of his and
VA's respective obligations to obtain different types of
evidence. All identified evidence has been obtained, and VA
examinations have been provided. The Board finds that the
notice and duty to assist provisions of the law have been
met. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159;
Quartuccio v. Principi, 16 Vet.App. 183 (2002).
The veteran contends that he was exposed to asbestos on a
regular basis throughout his 24-year military career, in the
course of his duties as a pipefitter and aviation welder, and
that as a result, he developed lung disease.
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Inhalation of asbestos fibers can produce fibrosis and
tumors. The most common disease is interstitial pulmonary
fibrosis (asbestosis). Asbestos fibers may also produce
pleural effusions and fibrosis, pleural plaques,
mesotheliomas of pleura and peritoneum, lung cancer, and
cancers of the gastrointestinal tract. VA Adjudication
Procedure Manual, M21-1, Part VI, 7.21(a)(1) (Change 90,
Aug. 19, 2002).
Some of the major occupations involving exposure to asbestos
include mining, milling, work in shipyards, insulation work,
demolition of old buildings, carpentry and construction,
manufacture and servicing of friction products such as clutch
facings and brake linings, manufacture and installation of
roofing and flooring materials, asbestos cement sheet and
pipe products, military equipment, etc. Exposure to any
simple type of asbestos is unusual except in mines and mills
where the raw materials are produced. M21-1, Part VI,
7.21(b)(1).
High exposure to asbestos and a high prevalence of disease
have been noted in insulation and shipyard workers. This is
significant considering that, during World War II, several
million people employed in U.S. shipyards and U.S. Navy
veterans were exposed to chrysotile products as well as
amosite and crocidolite since these varieties of African
asbestos were used extensively in military ship construction.
Many of these people have only recently come to medical
attention because the latent period varies from 10 to 45 or
more years between first exposure and development of disease.
Also of significance is that the exposure to asbestos may be
brief (as little as a month or two) or indirect (bystander
disease). M21-1, Part VI, 7.21(b)(2).
When considering VA compensation claims, it must be
determined whether or not military records demonstrate
evidence of asbestos exposure in service. M21-1, Part VI,
7.21(d)(1).
The veteran's reported history of asbestos exposure in
service, his occupational specialties while in the military,
and the time period of his active duty (i.e., primarily
before dangers of asbestos exposure became well known, and
protective measures were instituted) are sufficient to
establish his in-service asbestos exposure. Although he
continued to work as a welder and pipe fitter for years after
service, his lengthy period of active duty and the latency
period involved in development of asbestos-related disease
support a finding that in-service asbestos is a major
causative factor in any current asbestos-related lung
disease.
Until recent years, the veteran's medical examinations
generally did not find asbestos-related lung abnormalities,
although he was regularly checked for such, given his
occupational background. The medical evidence from 1999-2001
contains conflicting evidence as to whether the veteran has
current asbestos-related lung disease. The evaluation by Dr.
Altmeyer in 1999 resulted in a conclusion that the veteran
did have asbestosis, while the VA examiner in 2001 reached
the opposite conclusion. After reviewing all the evidence,
including the conflicting medical opinions, and applying the
benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)) in favor of
the veteran, the Board finds he now has asbestosis, and that
it was caused by asbestos exposure in service. Thus service
connection is warranted for asbestosis.
In addition, the post-service X-rays have shown a calcified
lung granuloma, due to old inflammatory disease. On one
occasion in 1993 this was associated with linear scarring,
and service medical records show old scarring on an X-ray in
1965. Although the extent, if any, to which the veteran has
respiratory impairment due to this abnormality is not known ,
the evidence supports a finding that it began in service.
Therefore, service connection is warranted for a calcified
lung granuloma.
However, the medical evidence establishes that other lung
disease, including chronic obstructive pulmonary disease or
bronchitis, are not related to service. Service medical
records do not show these conditions, and the evidence
indicates they began many years after service. VA and
private doctors have attributed these particular lung
conditions to the veteran's cigarette smoking, and current
law prohibits service connection based on the use of tobacco
products during service. 38 U.S.C.A. § 1103; 38 C.F.R.
§ 3.300. The medical evidence does not link these conditions
to asbestos exposure in service. As the preponderance of the
evidence is against service connection for chronic
obstructive pulmonary disease or bronchitis, the benefit-of-
the-doubt rule does not apply, and that aspect of the claim
must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
ORDER
Service connection for asbestosis is granted.
Service connection for a calcified lung granuloma is granted.
Service connection for other lung disease, including chronic
obstructive pulmonary disease and bronchitis, is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.